Fear of losing control stops more people from granting a Power of Attorney than cost, paperwork or superstition combined. The worry is easy enough to state. Sign the document, and somebody else gets your bank account, your house and the final say over your life.

Scots law does not work that way. A Power of Attorney is a bounded document, and you are the person who draws the boundaries. You choose your attorney, you decide which powers they hold, and you control the point at which those powers can be used at all.

This article sets out where those limits sit. It covers what an attorney can do, and what no attorney can ever do. It also explains the duties the law places on them, and how you can change your mind afterwards. If you are still weighing up whether to act, we have written about why waiting until it is too late causes real problems.

Powers of Attorney in Scotland are governed by the Adults with Incapacity (Scotland) Act 2000. The Act creates two separate powers, and most people grant both within a single document.

A continuing power covers property and financial affairs. Under it, an attorney might operate your bank account, pay your bills, deal with HMRC, manage investments or claim benefits on your behalf.

A welfare power covers health, care and where you live. Consenting to medical treatment, arranging care at home and agreeing a move into a care home all belong in this category.

The difference matters for one practical reason above all others. Each type of power switches on at a different moment, and that timing is where most of your protection sits.

Either way, an immediately exercisable power does not displace you. While you have capacity you carry on running your own affairs, and your attorney acts alongside you rather than instead of you.

Welfare powers cannot be used while you can decide

Here the law removes the choice, and it does so in your favour. Section 16(5) of the 2000 Act sets a firm rule. A welfare power cannot be exercised unless you are incapable of the decision in question. It can also be used where your attorney reasonably believes that you are.

In plain English, a welfare attorney cannot overrule you about your treatment or your home. That holds for as long as you remain able to make the decision yourself. Until then the power sits dormant.

Incapacity is also decision-specific rather than a switch that flips once and for all. Someone may be unable to weigh up a complex care decision while remaining perfectly capable of choosing what to eat, who to see and what to wear.

A Scottish Power of Attorney is not a standard form with a fixed list of powers attached. It is drafted for you, and your attorney can do only what the document says they may do.

That principle has real teeth. The Scottish Government’s code of practice for continuing and welfare attorneys is explicit on the point. An attorney may only make those decisions the document gives them authority to make.

Selling your home is the clearest illustration. Where your document contains no power to deal with heritable property, your attorney cannot sell your house. In that situation the code of practice points the attorney to the sheriff, who may grant an intervention order.

Gifts work in much the same way. An attorney can only make a gift from your estate where the document specifically authorises it. The same goes for renouncing an entitlement for tax planning purposes.

One consequence deserves emphasis, however. Powers cannot be added once capacity has been lost, so anything left out of the document stays out of it. Careful drafting at the outset of a Power of Attorney is therefore worth considerably more than it costs.

Some decisions stay personal to you however widely your document is drafted. No Power of Attorney can transfer them to anybody else.

Your Will is the most significant example. A Scottish Will must be subscribed by you, and no attorney can make or alter one on your behalf. England and Wales allow a statutory Will through the Court of Protection. As the Law Society of Scotland notes, Scots law has no equivalent mechanism. That is one very good reason to deal with a Will and a Power of Attorney together.

The Act also rules out certain welfare decisions outright. A welfare attorney cannot:

• place you in hospital for the treatment of a mental disorder against your will
• consent on your behalf to treatments excluded by regulations
• authorise organ or tissue donation for you, or withdraw an authorisation you have given

Certain personal acts lie beyond any attorney too. Marrying, entering a civil partnership, divorcing and casting your vote are all things you do yourself or not at all.

An attorney is not free to do as they please with the powers they hold. The Act imposes a framework of duties, and the general principles in section 1 govern every decision an attorney takes.

Before acting, an attorney must be satisfied that the intervention will benefit you and that the benefit cannot reasonably be achieved another way. They must then choose the least restrictive option available. Your present and past wishes have to be taken into account. Where it is reasonable and practicable, they must also consult your nearest relative and primary carer.

Beyond the principles, the Office of the Public Guardian sets out plainly what is expected of an attorney. Attorneys must act within the scope of their powers, keep proper records, and never take advantage of their position of trust.

That last duty is a fiduciary one. Attorneys must not profit personally from the role, and the only exception is a gift the document expressly permits. Continuing attorneys must also keep your money and property separate from their own.

There is a positive duty as well, and it is easily overlooked. Attorneys must encourage you to exercise whatever skills you still have. They should help you develop new ones too.

A common misunderstanding is worth clearing up at this point. The Public Guardian registers every continuing and welfare Power of Attorney in Scotland. No attorney has any authority to act until that registration is complete. Routine supervision of attorneys, however, is not part of the role.

What the Public Guardian does have is a duty to investigate concerns. Where an incapable adult’s property or finances appear to be at risk, the investigation team can act. It can require records from the attorney and from the banks.

Two limits on that remit are worth knowing. The Public Guardian looks at financial matters only, so welfare concerns go to the local authority or the Mental Welfare Commission instead. Disputes between joint attorneys also fall outside the remit.

The sheriff holds the stronger powers. Anyone claiming an interest can apply, and the sheriff may then:

• order the attorney to be supervised by the Public Guardian
• order accounts to be submitted for audit
• require a welfare attorney to report on how powers have been used
• revoke individual powers, or the appointment itself

We have also written about preventing a Power of Attorney from being misused. It looks at the safeguards worth building in when the document is first drafted.

A common misunderstanding is worth clearing up at this point. The Public Guardian registers every continuing and welfare Power of Attorney in Scotland. No attorney has any authority to act until that registration is complete. Routine supervision of attorneys, however, is not part of the role.

What the Public Guardian does have is a duty to investigate concerns. Where an incapable adult’s property or finances appear to be at risk, the investigation team can act. It can require records from the attorney and from the banks.

Two limits on that remit are worth knowing. The Public Guardian looks at financial matters only, so welfare concerns go to the local authority or the Mental Welfare Commission instead. Disputes between joint attorneys also fall outside the remit.

The sheriff holds the stronger powers. Anyone claiming an interest can apply, and the sheriff may then:

• order the attorney to be supervised by the Public Guardian
• order accounts to be submitted for audit
• require a welfare attorney to report on how powers have been used
• revoke individual powers, or the appointment itself

We have also written about preventing a Power of Attorney from being misused. It looks at the safeguards worth building in when the document is first drafted.

We draft the document to match your answers, provide the statutory certificate, and handle registration on your behalf. If you would like to put a Will in place at the same time, we can usually deal with both in a single appointment.

Raise it, and raise it early. Concerns about an incapable adult’s money or property go to the investigation team at the Office of the Public Guardian, which can demand records from the attorney and from the banks. Welfare concerns go instead to the local authority social work department or to the Mental Welfare Commission. Anyone claiming an interest can also apply to the sheriff. A sheriff may order supervision, require audited accounts, or remove the attorney altogether. Serious financial abuse can additionally be reported to the police.

Yes. You may appoint as many attorneys as you wish, and you decide how they must act. Requiring joint decisions builds in a check, because neither attorney can then act without the other. There is a practical trade-off, though, since both must be available for every decision and that can cause delay. Many people therefore allow their attorneys to act together and separately. Others name a substitute to step in if an attorney dies or resigns. Your solicitor can advise on which structure suits your circumstances.

Joe Rowan is an Assistant Solicitor at Pomphreys, Solicitors, Wishaw, based in our Kenilworth Avenue office. After years as a legal advisor with a football club, Joe decided it was time to get back into mainstream law, preferably in a conveyancing or private client role, areas of law he's always enjoyed. Happily, for Joe, such a position became available at Pomphreys around the same time, and he was delighted to become part of the firm.

Tel: 01698 373365

Email: jr@pomphreyslaw.com